LEGAL ADVICE—Guardianship

By on August 4, 2016
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By Elizabeth Wynn

 

Over the years, I have often wondered how many young parents really think about who will take care of their children if they are unable to do so. Parents spend countless hours planning everything from college to swimming lessons, but never seem to think about who would assume guardianship of their minor children if unforeseen events occur in their lives.

 

Often I tell people that elder law is not just for those with gray hair and grandchildren. It includes estate planning for parents of young children, even though those parents might not be elder. Certainly, anyone with a young child can benefit from a consultation with an elder law attorney to discuss the need for a provision naming a guardian in his or her Will.

 

As a parent of a minor child, it is imperative that you legally designate a guardian in the event something happens to you. A guardian is the person who will be responsible for raising your child in your absence, and there are a number of factors to consider when choosing this person. In the state of Mississippi, the most effective way to ensure that your guardianship choice is honored is through the probate of a valid Last Will and Testament in the Chancery Court.

 

Determining whom you will name is profoundly personal. To be sure, this is probably the most important and most difficult part of the estate planning process for parents. My husband and I have a four-year-old son. After his birth, we quickly updated our estate plan to include guardianship instructions for our young son and any future children we may have. Including future children is important and often overlooked. You should not limit your wishes to cover only present children. If you do, you run the risk of unintentionally separating siblings, or leaving room for contention in your family after your death. If you are among the few that have done this planning, examine your Will and make sure it mentions all children present and future.

 

I have a young sister and niece, so prior to becoming an estate-planning attorney I was exposed to the necessity of guardianship arrangements. I had given some thought to whom I would name if I ever had children. I understood the seriousness of the situation. Conversely, my husband is an only child and this is not something he had previously considered. After our son’s birth, the gravity of the choice was certainly heightened. There was certainly a great deal for us to discuss and consider. As you can see, this is not something that we took lightly—nor should you.

 

No one can tell you exactly what factors are important, because the things my husband and I consider important for our son may not be the same factors other parents consider important. There are also circumstances that may be present in your family that we did not have to take into account.

 

I will tell you to carefully consider both present and future circumstances of the potential guardianship candidates, as well as what is important for your children. Consider age, health, financial circumstances, and geographical location of the likely guardian. After you have narrowed the choices down to a few, consult with those people, and make sure they are willing and able to serve. If your children are old enough, you might want to consider their preferences and input. Also, do not limit your final choice to just one person. You need to name a primary and secondary guardian in your Will. It is important to always have a contingency plan in estate matters.

 

For most, there is probably no perfect choice. It is almost impossible to even imagine someone other than you or your spouse raising your child. But it can certainly happen, and you must assure that your choice is preserved accurately according to Mississippi law. When your estate plan does not name a legal guardian, the decision will be made by a Probate Court, which may not coincide with your and your family’s wishes.

 

When you really think about it, this person will be in charge of your child’s overall upbringing, including personal beliefs, morals, values and educational development. Can you think of anything that warrants more of your time and attention? I certainly can’t.